It could get easier for older job applicants to prove age discrimination

No one over the age of 40 needs to be reminded that age discrimination in the workplace is a very real problem, and even with laws in place that are supposed to protect older workers, the odds are often stacked against you when vindicating your rights in court.

It is particularly difficult for older workers to win a claim for discrimination in the hiring process. For one thing, often they must prove that the job was offered to a younger candidate less qualified than they were.

A recent but relatively overlooked case in Chicago federal court has expanded protections for older job applicants.

The Age Discrimination in Employment Act (ADEA) of 1967 was designed to prohibit practices that intentionally discriminate against older workers or that have a “disparate impact” on them. This means that even if an employer’s policy does not age-discriminate on its face, or explicitly, it can still be discriminatory if its practical effect is one that punishes older workers for their age.

There is little question that running a job ad specifying a preference for younger applicants is an explicitly discriminatory hiring practice, and any applicant would have cause to bring an action. But a more muddled and unsettled area has been whether the “disparate impact” provision applies only to people already employed by the employer.

In Kleber v. CareFusion Corp., the Seventh Circuit Court of Appeals was asked to decide whether the disparate impact provision (Section 623(a)(2)), protects only an organization’s current employees or also protects outside job applicants.

The relevant section of ADEA reads:

It shall be unlawful for an employer—(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age

In a victory for older applicants, the court held 2-1 that the provision protects both outside applicants and current employees.

The court concluded that the words used in ADEA itself, the original purpose of the Act, and a half-century of court cases interpreting the Act demanded such a reading.

“We could not imagine … a plausible policy reason why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants,” the court wrote in its opinion.

The plaintiff in the Kleber case was a 58-year-old, highly experienced corporate attorney who applied for a senior in-house counsel opening with CareFusion, a healthcare products company. The job posting closely matched his background and skillset, but also stated that applicants must have “no more than 7 years of relevant legal experience.” CareFusion received the plaintiff’s application but did not call him for an interview, instead giving the job to a 29‐year‐old applicant.

Ostensibly, the company did not interview the plaintiff because he had more than seven years of relevant legal experience. Because of the experience cap, he filed a charge of age discrimination with the Equal Employment Opportunity Commission. CareFusion’s response was that the job posting’s maximum experience cap was “based on the reasonable concern” that an individual with many more years of experience would become frustrated with the job responsibilities and not remain in the position. [This is a fairly rote and commonly used defense against hiring discrimination claims.]

The plaintiff brought suit for disparate treatment and disparate impact, charging that the experience cap was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions … and has a disparate impact on qualified applicants over the age of 40.” CareFusion’s defense was that ADEA’s disparate impact provision does not cover job applicants who are not already employed by them.

Disputes based on statutory law often come down to the technicalities of legislative phrasing. The Seventh Circuit concluded that the “fail or refuse to hire” and “limit, segregate, or classify” language was not intended to be and should not be limited to current employees: “Its broad language easily reaches employment practices that hurt older job applicants as well as current employees.” CareFusion limited and classified its employees by setting an experience maximum.

The court shot down CareFusion’s proposition that the phrase “status as an employee” is not implicated when a person is denied the opportunity to become an employee in the first place.

“Deciding whether a person becomes an employee or not has the most dramatic possible effect on ‘status as an employee.’”

Imagine two applicants for [CareFusion’s] senior counsel position: both are in their fifties, and both have significantly more than seven years of relevant legal experience. One does not currently have a job with the defendant. The other already has a job with the defendant but wants a transfer or promotion to the senior counsel position. Both are turned down because they have more than seven years of experience. According to CareFusion’s interpretation of the law, the internal applicant can sue for a disparate impact violation, but the external one cannot.

That result would be arbitrary and even baffling, especially under a statute with the stated purpose “to prohibit arbitrary age discrimination in employment.

Examining the Act’s history, the court noted that Congress expressed concern about the difficulty older workers faced in what it termed trying to “regain employment when displaced from jobs”—in other words, when applying for jobs.

“There can be no doubt that Congress enacted the ADEA to address unfair employment practices that make it harder for older people to find jobs.”

Slam, dunk.

So let’s hear it for ADEA and a fairly atypical court interpretation of the law that favors workers. ADEA is now 51 years old; if it were a working person it would be protected by itself from workplace discrimination.

(As a federal circuit court decision, this ruling affects individuals in the group of midwestern states, including Illinois, Wisconsin and Indiana, that comprise the Seventh Circuit, and not nationwide)

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